At Baird Williams & Greer, we are strong supporters of technology in the courtroom. In fact, we work with TrailDirector, to keep organized in the office and present a stronger case in the courtroom.

Derek Miller, Chief Executive Officer and President of inData Corporation, the makers of TrialDirector, says, “The use of technology in the courtroom allows the attorney to quickly and efficiently focus on the key elements of their case. The ability to call out a specific paragraph of a document and highlight the area at issue keeps the judge’s and/or jury’s attention on what you want them to remember.”

Although I too am a strong a proponent of technology, I believe that there is a time and place for technology and the courtroom. Take Justice Antonin Scalia for example. Some say he made shrewd rulings on tech-related cases. Shrewd is the wrong word because it connotes some sort of practical cleverness. Sagacious is a better word. His view of the law was to apply it to facts, not rewrite the law to arrive at a result.

When it came to technology, application of scientific advances for practical purposes, Scalia was able to relate what was at work to legal precedent in a particularly keen, discerning way, even with technological advances new to him. For instance, technology allows a police helicopter to overfly a backyard and see what is happening without a warrant, but using technology to see infrared images of what is happening behind the walls of one’s home needs a warrant even though there is no observation through the wall, just the reflections “off-the-wall” on the outside of the house. Not at all, then, like looking at the backyard from a helicopter.

Scalia could judge the watershed between the such uses, unshackling the Fourth Amendment’s warrantless search prohibition from the law of trespass, which had been its bedrock well into the Twentieth Century. The violation of a subjective expectation of privacy applied to societal norms is the original bedrock, perhaps, but that means understanding what is at play so far as the Constitution is concerned and what is at work with the technology.

His replacement

Furthermore, Justice Scalia’s replacement does not need to be technologically savvy; in fact, being too much of a geek could cloud the judgment needed. What geek does not think use should be made of the new advance? Sagacious application of principles to facts, on the other hand, can uphold Constitutional rights over technological possibilities.

A Supreme Court justice needs to know the law, the Constitution, and what the Constitution protects. The jurist needs to be quick enough to parse the explanations of what technology does—the onus being on the parties to explain it—and apply judicial skills to arrive at a conclusion whether use of technology violates the law or the Constitution.”

Some think Justice Scalia was avant-garde in his approach to technology. A closer look shows he was reaching deeply into the past, finding original intent, and applying it today. He would not let technology destroy the Constitutional bedrock of our society.

About Daryl Williams, Attorney at Law, Baird Williams & Greer Attorneys at Law

Daryl M. Williams is an AV-rated trial lawyer, a distinction awarded to preeminent lawyers. He has conducted more than 100 jury trials involving commercial litigation matters. His largest jury award resulted in a judgement nearing $60 million for an international breach-of-contract case involving claims against the world’s largest childcare provider, a multi-billion dollar company. bwglaw.net

Suppose you have a case that went to trial, and you are facing an appeal. Either you lost and want to appeal the decision, or you won, but your opponent has vowed to appeal. In any event, the case is going to the next level. Should your trial lawyer handle the appeal? After all, your trial lawyer has worked on the case for months, perhaps years, and will know the facts and law intimately. In fact, your trial lawyer probably crafted many of the arguments that may be raised on appeal. What is more, having gone to battle with your trial counsel, you’re comfortable with them and trust their judgment. If your trial counsel has appellate experience, then having them handle the appeal may be advisable.[1]

But if they don’t do appeals, you want to consider counsel who specializes in them. Trial and appellate work are quite different. Being a great trial lawyer does not make one a great appellate advocate. As federal appellate judge Ruggero J. Aldisert notes, a successful trial lawyer is a salesperson whose objective is to persuade a panel of lay jurors that their client’s witnesses are credible and that the facts favor their side.[2] Trial advocacy typically involves more than legal argument; it often involves emotional appeals to create a sense of righteousness. Much trial advocacy is verbal. Thus, argument is more fluid, organic, and less focused on analysis of legal concepts.
“The only thing you got in this world is what you can sell.” Arthur Miller, Death of a Salesman.

An appellate lawyer, on the other hand, “is still a salesperson, but the lawyer carries a different sample case.”[3] Instead of juries, the audience in an appeal is a panel of professional judges. Also, while trial argument is primarily verbal, appellate advocacy is generally written. Where a trial brief is typically less than 10 pages, appellate briefs often run to 30 pages or more. As Judge Aldisert notes, appellate advocacy is really a dialogue between professional writers (appellate attorneys) and professional readers (judges). To be sure, appellate lawyers present oral arguments, but these arguments are extremely circumscribed, often only 15 to 20 minutes; compare this with the days or even weeks a trial lawyer gets to make their case. Additionally, appellate work focuses on the law rather than facts. This results in often abstract arguments concerning policy, history, legislative intent and the analysis of legal concepts. Good appellate attorneys are often reflective, analytical and introverted—traits that are not often associated with the fireworks of a trial courtroom.

This is not to say that trial lawyers are not thoughtful or that appellate attorneys are shut-ins. Nor is it that trial lawyers cannot be successful appellate attorneys, or vice versa. Indeed, there is quite a bit of overlap in trial and appellate skills. The point is that the differences between trial and appellate practice are important and are a factor in successful appeals.

Discovery in commercial cases, which is all I do, has always been a problem. Before computers and electronically stored information, ESI in lawyer-speak, the issue was being taken to a warehouse full of closed files where you could spend days and weeks looking through banker’s boxes, the producing party saying, “The documents are in there somewhere and the burden and expense for you to find them is the same or less than the expense of us finding them.”

ESI has not made this easier; indeed, the discovery burden is greater because of the volume and complexity associated with looking at the electronic documents and the potential for sanctions if you do not preserve ESI. We handle this internally by getting images of our own client’s computers, which is not very expensive, so that we cannot be accused of not having the ESI if a discovery dispute arises. We have the snapshot. We can then process our client’s records using an internal program that de-dupes and deNISTs the client files; deNISTing involves identification of standard files, like program files, that have nothing to do with data. We can, then, pare the data files down to something manageable with statistical analysis of who is involved in email chains, document revisions, etc. We save the client tens-of-thousands of dollars doing this in-house rather than sending it out to a vendor.

Eventually, though, someone has to put eyes on the images, and the client’s input is essential so you are not engaged in a rock-turning exercise. The client needs to direct the lawyer to the rocks covering the worms needed to go fishing—go to trial. Otherwise, you are turning over rocks in the field of discovery with no more of a plan than turning over every rock in the field to find every worm. The client can give guidance, like describing the wet side of the field where the worms are. It is very expensive to just turn over every rock. The trial lawyer needs to feel comfortable knowing he has enough worms in his can to go fishing even though he has not turned over every rock. Too many lawyers spend all their time rock turning without going to trial. The object is going to trial, i.e. fishing with enough bait to catch your fish.

I also think you need to be careful about spending to much time looking at your client’s or the other side’s computer. We get images of the other side’s computers, of course, and do our own internal de-duplication and de-NISTing and paring, but the client usually knows where to look for worms on its own computer and the other side’s computer. For example, just looking at a particular date range can be very helpful and limits the rock-turning time. Likewise, a subpoena to a third party can turn up a document not produced by the other side, resulting in a narrowly targeted review of the computer if the document is important enough. Is that document important enough?

Many firms tend to put baby lawyers into the field of discovery where they are engaged in prolix rock-turning. The big client being represented by the big firm is slow to realize that the work can be done more efficiently, mistaking the size of the firm and the number of lawyers engaged in rock turning for the quality of representation. Computers make a small firm with expertise equal to the big firm with manpower; after all, it is just one lawyer who stands up and talks in the courtroom.

Poised somewhere between sinful vanity and self-destructive submissiveness is a golden mean of self-esteem appropriate to the human condition. – Stanford Lyman[1]

Some successful trial lawyers dominate a courtroom. Their intellect shines, their command of the facts are unparalleled, their language soars. Their physical posture is intimidating; their glare or bemusement or glow reflects whether a jury should trust a witness or even consider an exhibit. Their outrage or reason or compassion can be summoned to their faces and voices at will.

Such gifted advocates are rare. Those skills are as much natural endowments as they are learned. In fact, without those native gifts, similar efforts at domination fall flat. They are too forced, too unnatural for most.

What can be cultivated, however, is something that we trial lawyers normally suppress. That is an admission that we don’t know everything, that we cannot hope to understand it all, that we are just doing our best to represent our client with such modest talents as we have, gifts perhaps no greater than those of the jurors. We can, in short, infuse our presentation with humility. Not forced nor feigned, but real humility.

That concept is most often written about in theological terms, defined usually in juxtaposition to the sin of pride. And, while helpful to our understanding, the humility associated with monastic orders is not to be confused with the humility which marks an effective trial lawyer. C.S. Lewis put it in understandable terms:

Don’t imagine that if you meet a really humble man he will be what most people call “humble” nowadays: he won’t be a sort of greasy, smarmy person, who’s always telling you that, of course, he’s nobody. Probably all you’ll think about him is that he seemed a cheerful, intelligent chap who took a real interest in what you said to him. If you do dislike him, it will be because you feel a bit envious of anyone who seems to enjoy life so easily. He won’t be thinking about himself at all.[2]

Humility of this sort leaves us free to admit that we’re anxious of the task ahead. To represent another person whose future turns upon the judgment of a handful of strangers on the jury is a humbling thing. But necessarily in representing another in a forum for which we have been well trained, we assume power denied to the litigant. He does not know the rules of procedure or of evidence. He does not know how to present facts in a compelling and credible manner. He does not know how to deal with contrary evidence or adverse rulings. We do. With that knowledge comes power. That power, coupled with the natural competition born of the adversarial system, may cause us to slip easily over the fine line into arrogance. But the power to represent another whose future or fortune turns upon our representation cannot be treated lightly or arrogantly. It compels humility.

Telling a jury how we feel – probably the same thing they would feel if they were in our shoes – is telling the truth. It is an admission of our humanity and shortens the distance between ourselves ant the trier of fact. It is a leveler of social strata. That truth permeates the evidence.

But truth is best told as a story. We learn from stories. Fables, allegories, parables, poems, lyrics, plays, movies all are a means of conveying truth. The detail in the story conveys both the genuineness of the events and the deeper meaning beyond the events. A story should move the hearer to feel something, to do something, to bring the story to conclusion and to bring it to conclusion in a way that is consistent with the deeper truths the story is meant to convey.

It is from the details that not only does the story ring true, but the credibility of the story teller is enhanced. Consider the following story, part of an opening statement to a jury:[3]

I am grateful to finally be here in this courtroom. It has taken a long time and has involved a lot of work. I’m frightened by the prospect of having you consider what I have to say; fearful about how I can best help you understand what Jim and Carol Jones have experienced and have trusted me to show how you can make things right.

First, let me tell you about their home. It is a modest, three bedroom house in an old neighborhood in Mesa Arizona. It was built in the late 50’s and is a short distance from an elementary school. The yard is neat with old trees standing at its edge. Stretching diagonally across the lawn is a worn path from the front door in the direction of the grade school a couple of blocks away. Enter the home and you see to the left a wall of photographs, family picture mostly. By the clothes you can tell some photos go back three or four generations. Some people are aging, some are young people mugging for the camera; most are family group shots. In the middle of the photos is a slightly larger painting of a boy who appears about nine or ten years of age. Next to the painting is a small school picture showing the same subject, in the same clothes, in the same pose. Past the wall is a hallway to the left. As you turn you see a door on the right. At that door you look in the room. There is poster of Steve Nash and the Phoenix Suns on the wall, a framed drawing of Christ on the opposite wall. Soccer and basketball trophies are on a shelf above a neatly made bed with an aging “Toy Story” bed spread. There are shelves with books of stories for early readers. A baseball and bat is on top of the book case. In the closet you see the blue and gold of a cub scout uniform, a rugby shirt, an Arizona Cardinals jacket and unmatched pants. On the floor of the closet is a clear plastic bin with Legos in various states of assembly.

It is obviously a boy’s room. But strangely there is no clutter. No clothes on the floor, no books strewn about, no toys in sight. It is clean, almost sterile. But it is empty. You can almost feel the emptiness. It is empty and it is quiet.

It is empty and silent and clean because that man, Sam Everett, sitting at the table across from us, mixed gasoline with alcohol and drove his truck into the little boy who lived there; the boy who left the safe path from his home, crossed the street at the same marked crosswalk that he always did on his way to school and was sent flying more than fifty feet. His skull was fractured at the parietal bone; his lung was punctured by his fourth rib; his spleen was torn and bleeding; his right femur snapped. He lived long enough for his mother to reach him before the ambulance arrived. But the defendant was not even aware that he died. He was three sheets to the wind at the steering wheel of his truck.

You see, Mr. Everett had been at a company picnic, one of those large events at the park, at which his employer sponsored team building exercises, provided catered food, music, mingling between executives and line workers, good times and an open bar – an open bar attended by a single young woman who had volunteered to be there; who had never done it before, and, who never drank herself. Over a period of four hours, the outgoing and fun and charming and flirtatious Sam Everett consumed enough from the bar so that his blood alcohol registered twice the legal limit when his blood was drawn two hours after he wobbled away from the open bar and stumbled into his truck.

So what will a jury feel with that story? Does it ring true? How will they now view the evidence? Will they feel the loss? Will the feel any outrage? What will they want to do?

Now we could convey the same facts in simple declarative statements: “This was a close and religious family. The parents were involved with their children. They miss their son. The defendant was driving drunk. The employer was negligent in serving drinks.” Those statements are true. But they do not convey that truth as much as does the detailed story. They do not impel a jury to feel and want to do something about it.

Rudy Baylor, John Grisham’s hero in “The Rainmaker,” disappears behind his client’s dead son in his closing argument in an insurance bad faith case. The son’s videotaped deposition is first played to the jury in which the young man talks bout the hope and survival offered by a bone marrow transplant, denied by the insurer. The actions of the defendant health insurer are detailed. Mr. Baylor then concludes simply: “I’m askin’ you, the jury, to do what is right, in your heart.”
No demands, no soaring oratory, no brilliant analogies, just a simple heart felt and genuine, even humble, request for justice.

Exclusion of hearsay in the courtroom is like a knee-jerk reaction by opposing counsel and a similarly quick response by the judge. “What did he say?” is a question opposing counsel and the judge will think calls for hearsay if the guy talking is not a party to the lawsuit. So, the trial lawyer thinks, he will recast the question to “What did you understand?” Is that not hearsay if the only way the understanding came was by listening to what that non-party individual said?

How about this: the president of a company fires a superintendent after he hears from various employees that this superintendent was speaking to others in a derogatory manner about customer employees and behaving in a manner that did not meet the standards of the company. The superintendent sues for wrongful termination so the company’s lawyer asks the president on the stand why he fired the superintendent. The reason the superintendent was fired, of course, is because the president believed what he heard about the superintendent.

Q. Why did you fire him?
A. Because I was not happy when I heard bad reports from a customer.
Q. Who?
A. Joe Schmow.
Q. What did Mr. Schmow tell you?
OBJECTION: Hearsay.

Is it hearsay? Can the president relate what he was told that formed the basis of his decision? After all, that is why he fired the superintendent.

Some judges are going to rule that this is blatant hearsay and inadmissible, but others are going to let it in. Moreover, the courts ruling will be affected by—this is human nature—the court’s view of the case. The judge, even one on the bench for fifteen years, may disregard the technicalities of the hearsay rule if it suits him, the following is an actual transcript:

BY COUNSEL: Well, your Honor, again, we’re not using any of this evidence for the truth of the matter, other than this is the truth of the basis upon which we made a decision, which is not a hearsay problem.
THE COURT: All right. You can try to say that out loud to the jury if you want, but I’m going to laugh when you say that to me. You can split that hair and have somebody actually make that mental gymnastic leap. Good luck. I understand the damage that it does . . . .

The question, then, becomes how the lawyer educates or confuses the judge as to the nature of hearsay. Not being prepared for this type of nuance can be the difference between winning and losing. The trial lawyer has to remember that the trial judge does not try very many commercial cases, and those that he does try usually do not involve this sort of nuanced issue.